Equity considerations in mental health diversion in California

Abstract

Mental health diversion under California Assembly Bill (AB) 1810 created a pretrial pathway for individuals to enroll in community-based treatment as an alternative to incarceration if they have a mental illness that played a significant role in the crime for which they were charged. Mental health diversion may be a promising approach to addressing racial disparities in incarceration. This qualitative, community-partnered study examines how racial equity was considered in the design and implementation of mental health diversion under AB 1810 in nine counties across California. We explored five main themes: involvement of community stakeholders; cultural competence of providers; availability of diversion across counties; efforts to monitor demographics; and diversion as an opportunity to address racial disparities in the criminal legal system. We found that, although many legal professionals are optimistic about the capacity of mental health diversion to address racial disparities in incarceration, there have been limited efforts to monitor the demographics of diversion participants, differing understandings of cultural competency, limited community involvement in the design of mental health diversion, and limitations to the availability of services for individuals enrolled in diversion programs.

Keywords:

• diversion
• mental health
• racial equity
• equity
• community-based treatment
• qualitative

Introduction

On January 1, 2019, California Assembly Bill 1810 established a pretrial pathway to diversion for individuals whose mental illness played a significant role in the commission of the crime for which they were charged, with some violent crimes excluded, including charges of intentional homicide and certain sex crimes. The bill was codified in Penal Code 1001.36. Mental health diversion is a process through which defendants can participate in community-based mental health treatment; if the treatment program is successfully completed, the charges are dropped. AB 1810 also provided $100 million for county programs to help divert defendants from jail into treatment (California Department of State Hospitals, 2023). Though this legislation occurred at the state-level, counties have flexibility with respect to the ways that they offer diversion, so programs vary from county to county. Due to COVID-19 and other factors, counties have been instituting new mental health diversion protocols and programs at varying levels, so California is still early in the implementation process.

AB 1810 was meant to address the disproportionate number of people with mental health concerns involved in the criminal legal system. Currently, jails function as the largest mental health facilities in this country (Fuller et al., 2010). An estimated 15% of men and 31% of women incarcerated in jails have a serious mental health disorder (Steadman et al., 2009), and rates of other mental health challenges are even higher (Bronson & Berzofsky, 2017). In recognition of this fact, jurisdictions are increasingly moving toward diversion—that is, programs that redirect individuals with mental health concerns from incarceration and into community-based treatment. Diversion programs connect individuals with needed treatment services and can help communities reduce costs without compromising public safety (Heilbrun et al., 2012).

In addition to addressing the overrepresentation of people with mental health concerns in jails and prisons, mental health diversion has the potential to address the substantial racial inequities in the criminal legal system. About 17% of adult African American men have served time in prison (Hartney & Vuong, 2009), and 1 in 3 are expected to go to prison in their lifetime (Bonczar, 2003). In California, though the state population is 39% Latino and 6% Black, the population of those incarcerated in jails and prisons is 41% Latino and 27% Black (United States Census Bureau, 2021). These disproportionalities result in part from inequitable policing practices, sanctions applied for low-level offenses, the use of pretrial detention, plea bargaining, the length of community supervision, and sentencing practices (Eaglin & Solomon, 2015; Fuller et al., 2010; Rehavi & Starr, 2014; Schlesinger, 2007; Steffensmeier & Demuth, 2000).

Moreover, evidence has shown that people from marginalized racial groups are overrepresented in the mental health population. A recent study of the Los Angeles County jail system found that Black individuals comprised 30% of the jail population, but 41% of those within the jail mental health population (Appel et al., 2020). At the same time, a study found that there were no racial differences in whether individuals from the jail mental health population were appropriate for diversion (Holliday et al., 2021). If this is true for counties across California, it means that increased use of mental health diversion could especially benefit marginalized racial groups. However, it is unclear whether diversion rates are proportionate across racial groups and how expansions in diversion may enable the county to reduce existing disparities.

Racially equitable outcomes rarely happen by accident. Without an intentional consideration of racial equity, it is all too possible to unintentionally create or exacerbate existing disparities (DC Department of Energy and Environment, 2021). For this reason, it is important to consider whether equity was considered when designing programs and in evaluating the implementation and outcomes of those programs (Center for Evaluation Innovation, 2018). Despite the significant racial disparities in the criminal legal system, studies generally have not applied a racial equity lens to evaluating these types of programs (Chamberlin & Brooks Holliday, 2020). This study addressed this gap in the literature by applying an equity lens to the evaluation of the implementation of AB1810 in nine counties across California.

The purpose of this study was to understand how mental health diversion under AB 1810 is being implemented in California’s diverse population and examine its early effects on racial equity and racial justice. We aimed to answer the following research questions:

1. How was racial equity considered in the design and implementation of diversion programming?

2. What are the characteristics of diverted individuals?

3. Do legal professionals and other diversion partners view mental health diversion as an opportunity to address racial inequities in the criminal legal system?

Methods

Overview of research approach

This community-partnered study was conducted as a partnership between the RAND Corporation and the Anti-Recidivism Coalition (ARC). ARC is a community-based organization that works with currently and formerly incarcerated people by providing a support network, comprehensive reentry services, and involvement in advocating for grassroots policy change. As a result of its work and accomplishments, ARC is known as a state and national leader. Several staff members and interns from ARC were involved in this study, including behavioral health staff and trainees, policy advocates, and individuals who had been formerly incarcerated. Consistent with an equity-focused approach to research and evaluation, research team members from ARC were involved in all steps of the project (Andrews et al., 2019). Their specific roles included designing the study, including shaping the research questions related to racial equity; participant recruitment, including helping to identify counties to participate, as well as leveraging existing connections within those counties to identify points-of-contact for recruitment; designing interview protocols, with a focus on operationalizing “racial equity” for the purpose of the interview protocols and then developing questions to measure related constructs (as detailed below); data collection, including conducting research interviews in partnership with the RAND Corporation and independently, with the opportunity to debrief and obtain feedback throughout the data collection period; and data analysis, including coding data, analyzing themes, and summarizing findings.

Participants

We conducted this study in nine counties in California. We considered multiple characteristics when inviting counties to participate in the study, including county size, location, and racial/ethnic composition. We also focused on counties that had implemented mental health diversion to ensure that they had enough experience to discuss during qualitative interviews. In total, we reached out to individuals in fourteen counties and nine counties agreed to participate. Counties included in our sample tended to be large, with seven counties having a population greater than 1 million residents. There was geographic representation from across the state.

Within each county, our goal was to interview representatives from agencies involved in the provision of mental health diversion. We typically began by speaking with a representative from one office (e.g., public defender, department of behavioral health). That first representative was usually identified based on existing relationships with county staff, or based on publicly available information about diversion program staff members. We typically had an initial informational telephone call, and if the county agreed to participate, we worked with that point of contact to identify individuals who could represent the key agencies involved in diversion. We made suggestions as to the types of agencies that might be represented (e.g., public defender, district attorney, judges, department of behavioral health), but made it clear that we were flexible based on the way that diversion was offered within that specific county. Our goal was to interview up to five people from a given county to ensure that there was adequate representation across counties. In total, we interviewed 29 professionals, who represented public defender offices (n = 11), district attorney offices (n = 5), mental health agencies or providers (n = 11) and other stakeholders (i.e., judge, probation) (n = 2).

Protocol

We developed a semi-structured interview protocol to examine how racial equity had been considered in the design and implementation of mental health diversion. Our goal was to develop a protocol not only to measure inequities, but also to explore factors that are often the roots of racial disparities in the justice system (e.g., lack of access to treatment; limited efforts to monitor and address disparities; bias on the part of institutions or providers). To develop our protocol, we collaborated with ARC staff members to imagine what the “ideal standard” would be—that is, what would diversion planning and implementation have looked like if racial equity had been considered? We identified four key features:

1. Community stakeholders, such as community members and people with lived experience in the legal system, would be involved in designing mental health diversion programming, helping to ensure that programming reflected a diverse range of perspectives and, ideally, the racial background of the community and people most likely to be served by diversion programs;

2. Efforts would be made to ensure the cultural competence and sensitivity of diversion providers;

3. Diversion would be equally available across each county, regardless of the specific neighborhood in which people lived; and

4. Efforts would be made to monitor the demographics of the diversion pipeline to ensure that racial disparities were not being created or exacerbated.

We then developed a semi-structured interview protocol with questions to probe each of these domains. Table 1 summarizes how these specific domains map onto our three research questions, as well as interview questions that were used to ask about each domain. We supplemented these with broader questions to understand how diversion works in each county, given that the state-level statute allows for some flexibility in the implementation of diversion at the county level (Appendix A: Interview Protocol). This information provided important context for the equity-centered questions. Finally, we included a question to assess whether interviewees believed that mental health diversion could serve as an opportunity to address racial disparities in their counties’ criminal legal systems. Interviews lasted approximately 45 to 60 minutes. Interviews were recorded and professionally transcribed for analysis, with the exception of one interviewee who preferred that we take detailed notes in lieu of a recording. The RAND Corporation Institutional Review Board (IRB) approved all recruitment procedures including verbal consent procedures (Study No. 2021-0698).

Table 1. Findings themes & subthemes.

Theme	Sub-themes
Monitoring the Characteristics of the Mental Health Diversion Population	Many interviewees believed that the demographics of the diversion population was representative of larger demographics of the criminal legal system in the county. However, it was difficult to tell if these perceptions were data-driven or based on anecdotal evidence. Some interviewees felt certain populations (e.g., white individuals, women) were more likely to be diverted. In most counties, it is unclear if data is not being tracked or if data is tracked but some diversion partners are unaware of these efforts.
Cultural Competence and the Selection of Providers	In some counties the services offered may be dictated by the individual’s insurance provider, which means diversion programs have limited control over how providers are selected. Counties using a competitive bid process screen for providers able to offer culturally competent services, and others build requirements for training into county contracts. Providers and diversion partners have differing understanding of cultural competency, and what it means to provide culturally competent services.
Involvement of Community in Program Design	In most counties, community stakeholders and people with lived experience did not play a role in the design or implementation of diversion programming.
Limitations to the Availability of Services	Individuals were eligible to participate in diversion regardless of where they lived. However, external factors may limit the availability of services. Private insurance providers offered less robust coverage for services and do not cover the costs of mandated court drug testing. Individuals who live outside of the county they were charged in may encounter administrative barriers when enrolling in diversion in that county, including difficulty complying with reporting guidelines. In many counties diversion programs and/or the service providers are at or nearing capacity. Some have implemented wait lists. In some counties, clients face barriers finding housing and accessing reliable transportation, impacting their ability to access services.
Diversion as a way to address racial disparities	Some interviewees were hopeful about mental health diversion’s ability to address racial disparities in incarceration. Others emphasized that reliable program data and reporting was needed to determine if mental health diversion effectively reduces racial inequities in the criminal legal system. Some interviewees disagreed with the focus on race and ethnicity and emphasized that all program participants were treated equally regardless of their race or ethnicity.

Analysis

We analyzed data using Dedoose, an application for the analysis of qualitative and mixed methods data. We began by developing a codebook with parent codes that were based on the major domains of the interview protocol (e.g., “Involvement of community in design of program,” “County efforts to monitor pipeline”). We also identified child codes through a combination of both deductive (i.e., based on the interview protocol) and inductive processes (i.e., based on themes that emerged while conducting the interviews). Three research team members were involved in coding, and each transcript was double-coded. The team met regularly throughout the coding process and any coding discrepancies were discussed as a team and resolved by consensus. We also maintained a detailed codebook with definitions of each code that were clarified and updated throughout the coding process to ensure consistency across raters. Codes were then analyzed to identify common themes and summarized narratively, with quotes identified to illustrate key points.

Results

Research Question #1: How was racial equity considered in the design and implementation of diversion programming?

Involvement of community in designing diversion

Across counties, there appeared to be limited inclusion of community members or individuals who have been impacted by the legal system in designing or implementing diversion programs. One interviewee discussed the role of these types of groups in planning for mental health diversion. They noted that anytime a behavioral health provider is selected through a competitive bidding process in their county, they have a community stakeholder vetting process. They also indicated that when they make changes to their diversion programming, they communicate these changes with their local behavioral health advisory council, which includes the input of people with lived experience. Another noted that their local National Alliance on Mental Illness (NAMI) chapter has been “very supportive and really pushing for mental health diversion,” noting that the chapter has also had “a large focus on racial equity.” However, this appeared to be the exception—most counties did not describe a role for community members or people with lived experience in the diversion planning process.

Other interviewees focused more on the implementation of mental health diversion. Interviewees from one county reported that NAMI and other community organizations participate in monthly meetings related to mental health diversion clients. Interviewees from other counties described a role for community-based organizations in supporting diversion clients, such as employment and housing services, or described how they leveraged existing councils or stakeholder groups (e.g., the local Community Corrections Partnership, which brings together representation from local probation, superior court, district attorney, public defender, law enforcement, and behavioral health services providers). However, based on responses, it appeared that there was little formal inclusion of people with lived experience or other community members in determining how mental health diversion was designed and implemented.

Consideration of cultural competence in provider selection

Counties appeared to have varying levels of control over the capabilities of their providers, and this was based in part on how counties select diversion providers. For example, in some counties all clients receive services from a specific treatment provider. These counties often used a competitive bidding process to select those providers by releasing a request for proposals (RFP) and then selecting the bidder who best fulfilled the competencies they were seeking. In this case, the counties could specifically select for expertise related to working with individuals with a history of legal system involvement or prior experience treating clients with substance use disorder. While some interviewees spoke to the importance of having these prior qualifications, other counties did not require prior experience working with specific populations as selection criteria for providers. One interviewee described the provider selection criteria saying, “the minimum and maximum qualification is that they just need to submit a report in a timely fashion.”

Other counties rely on clients’ insurance to determine what service providers will provide treatment, whether through Medi-Cal or a private insurance provider. Clients with Medi-Cal insurance often received services from providers who were overseen by the county’s department of mental or behavioral health. When there was county oversight of the providers, there appeared to be more control over the types of training that were required of providers. For example, interviewees from one county noted:

Actually, [county mental health agency] does a really good job of ensuring that every provider, not just us, but every provider has access to training on cultural competency…Every new hire that we bring on board definitely goes through that training. And then after that, the county does track our cultural competency training hours every year. And we’re required to do at least an hour, but I know that a change has just happened with the county, and so those hours of training is actually going to go to eight.

Interviewees from some counties also shared that they provide training to familiarize service providers with the diversion population and the criminal legal system.

Varying understanding of cultural competency

At the same time, the responses we heard when we asked about the cultural competence of providers suggested that people have varying ideas of what that term means and approaches to offering culturally responsive services. One provider described this challenge, saying “It has been a struggle for partners to understand [the role of cultural competency], especially [when our client is] a tribal member.” Some interviewees focused on the role of training when they discussed cultural competency, with some people highlighting that there is training available for providers in their county, including cultural competency and cultural humility training, bias training, and training on working with clients with limited English proficiency or undocumented clients. But others highlighted opportunities for increasing the cultural humility and accessibility of their providers, including improving skills working with specific populations, offering services in languages other than English, or offering cultural humility training more frequently.

Other interviewees spoke about cultural competency in terms of the match between the demographic characteristics of providers and the client base they serve. For example, some interviewees talked about the importance of ensuring that their providers are diverse in racial or ethnic background so that they better reflect the populations that they serve. But not every interviewee felt that it was important to have a match between the demographics of providers and clients, with at least one interviewee noting that an important characteristic is simply a willingness to learn and experience providing high quality services.

Limitations to the availability of services

Interviewees from all nine of the counties that participated in the study shared that mental health diversion under AB 1810 was available throughout the county, meaning that individuals were eligible to participate in diversion under AB 1810 regardless of where in the county they resided, or which court their case was tried. However, interviewees from all counties also described several factors limit the availability of services for participants, and in some cases may make enrolling in mental health diversion infeasible for certain individuals.

Limitations to the availability of insurance

Insurance providers play a significant role in determining the type and quality of services available to individuals enrolled in mental health diversion. Individuals with private insurance have access to different types of services than those enrolled in Medi-Cal. Multiple interviewees shared that the quality of care and the types of expenses covered varied significantly, with private insurance companies offering less robust coverage. Interviewees from two counties shared that Kaiser Permanente had particularly poor coverage, and that it was often difficult for mental health diversion participants to receive mental health services through Kaiser. Additionally, interviewees indicated that Kaiser and other insurance providers do not cover costs associated with court mandated drug testing which is a barrier for diversion participants who cannot afford to pay out-of-pocket for drug testing. One interview explained that coverage offered through private insurance was sometimes so poor that their office encouraged diversion participants to give up private insurance so they could enroll in Medi-Cal. In addition, some service providers only accept Medi-Cal. One participant explained that “there’s only specific programs that don’t require it to be Medi-Cal funded. Funding sources are an issue.”

County boundaries

Program participants living outside of the county in which they were charged can face additional barriers to finding treatment providers. Medi-Cal insurance can only be used within the county where a person lives, so people who have been charged in an adjacent county have limited options for treatment providers. Even when clients have private insurance, program administrators described challenges to receiving progress reports and other updates from service providers located outside of county lines.

Constraints on provider capacity

Interviewees from multiple counties said that there is more demand for diversion services than their providers can accommodate. Interviewees from almost half of the counties said that their diversion programs and/or the service providers they contract with were at or nearing capacity, limiting their ability to enroll more diversion program participants. Some programs have implemented wait lists, either for certain types of services or for enrollment in mental health diversion overall. For at least one county, the court system was a limiting factor because getting potential participants approved for diversion created a bottleneck. For other counties the capacity of service providers and program slots created a limit. In addition to implementing waitlists, for some counties the high demand for mental health diversion has meant high caseloads for case workers. One interviewee said that her clients were incarcerated for longer periods of time due to provider capacity constraints because it is easier to get a motion granted by a judge if clients are released directly to a treatment program. Interviewees explained that despite the demand for more services, provider capacity is constrained by high worker turnover, and limited funding sources to expand services.

Housing and transportation

Service providers identified housing and transportation as barriers for diversion program participants. Though housing and transportation are not requirements for participation in diversion, the lack of housing or access to transportation can impede clients’ ability to participate in diversion. When program participants do find housing, it is sometimes in remote locations that make accessing services difficult. Program participants face a range of challenges when looking for housing including living in areas with expensive and competitive rental markets and may face additional barriers finding housing if they have a felony. Some diversion programs have made efforts to address these obstacles by offering transportation resources (e.g., bus passes, assistance from a case manager) or housing (e.g., transitional housing, permanent supportive housing, residential treatment programs). However, offering these services can be a challenge. For example, one interviewee noted that providing transportation requires a significant time commitment by staff, who already have many clients to support, explaining that “[a client could live] an hour and a half drive one-way. That’s a three-hour turnaround. It makes it really, really difficult to provide the same volume or frequency of services in person for those individuals.” Though some regions may have public transit and counties may be able to provide transit passes, some mental health diversion clients find it difficult to navigate public transit. One interviewee said, “the geographical distance in transportation and housing seems to be a huge barrier.”

Research Question #2: What are the characteristics of diverted individuals?

When asked whether the population eligible for diversion in each county differs from the larger criminal legal population, some individuals stated that their office does not track that information, and others indicated that they review each case individually and have not noticed if there were any broader trends related to race or ethnicity. However, most interviewees shared that they believed that the demographics of the mental health diversion population were similar to those of the larger criminal legal system-involved population in their county, with some interviewees noting that this meant that there was an overrepresentation of people of color in the program. That said, it was unclear whether these statements were data-driven or based on the individuals’ experiences working with legal system-involved populations in in their county. There were also a small number of respondents who raised questions as to whether certain racial or ethnic groups were more likely to be diverted:

I can say that it’s not a big secret that you are always going to be better off if your client is… a white kid from a middle class or upper middle-class background.

Some interviewees described other demographic characteristics of the diversion population as well, beyond race and ethnicity. For example, one interviewee mentioned that the client population for diversion in their county was younger than the broader criminal legal system. Regarding gender, an interviewee from one county noted that most diversion clients are men, but an interviewee from another county believed that women were more likely to be granted diversion in their county:

I would also say that it’s easier to get mental health diversion motions granted for women than men. And it’s probably because women are perceived as less violent.

Respondents also mentioned several other, non-demographic characteristics of their diversion population. For example, many interviewees highlighted participant mental health issues as the most distinctive feature of the diversion population. For example, an interviewee stated:

It’s socioeconomic status, gender, there’s no discrimination in that sense. For the referrals that we get, the criteria is strictly based on diagnosis. If they meet criteria per AB1810, we really look at their risk needs.

Other participants discussed factors that may contribute to an individual’s readiness to complete the mental health diversion program, with “readiness” defined by factors such as compliance with services, interest in employment, or adherence to medication. Interviewees also discussed legal eligibility for the program and described the population in context of the charges they face—for example, describing the willingness of stakeholders in their county to divert individuals facing more serious charges. In general, there was more of an emphasis on the clinical and legal characteristics of clients than monitoring demographic trends among diversion clients.

Counties also provided mixed descriptions of ongoing efforts in their county to monitor the demographics of the pipeline of diversion clients—that is, the racial and ethnic composition among those who were put forward for diversion, those who were diverted, and those who completed diversion. Interviewees from at least five counties noted that they were not aware of any efforts to track demographics among diversion clients or thought that another office might be tracking the data but that they had never seen the numbers themselves. Interviewees from four counties noted that there were efforts to track the data, either by the local behavioral health department or the public defender’s office. At the same time, it was sometimes difficult to know whether there might be efforts to track data that interviewees were unaware of, or whether there truly was not a centralized effort to monitor demographics. Interviewee responses did suggest that if data are being tracked within a given county, not all of the justice partners are aware of it.

Research Question #3: Do legal professionals and other diversion partners view mental health diversion as an opportunity to address racial inequities in the criminal legal system?

Interviewees were divided as to whether they believe that mental health diversion creates an opportunity to address racial and ethnic disparities in criminal legal system involvement in their county. Some interviewees said that they felt mental health diversion was an effective approach for reducing racial disparities in the carceral system. Some interviewees shared that mental health diversion was a promising mechanism to address racial disparities in access to mental health care. For example:

Our county, especially in [part of county] where I'm located, there is a larger Hispanic population … but a large majority of our folks don’t have access to mental health services, or they don’t have the means to live in areas that aren’t highly patrolled by police. So they’re more likely to have contact. So I think mental health diversion is a great way to help kind of filter people out with the criminal justice system into the mental health system that haven’t been able to get it.

Other interviewees shared concerns that programmatic barriers inhibit diversion’s ability to address racial inequities, including a lack of efforts to track program engagement and participant outcomes by race and ethnicity, biased sentencing by judges, and understaffing and high caseloads across diversion programs and service providers. One interviewee described biases in sentencing, saying “a lot of the judges that we have are Caucasian. I think that they are more lenient on individuals that are Caucasian, and it’s easier to get them into diversion.”

A third group of interviewees disagreed with the focus on racial equity, with one interviewee saying “[w]e try to treat everybody free of race and gender.” Individuals in this group sometimes emphasized that they felt other qualities like income or underlying health conditions were more influential in determining involvement in the criminal legal system.

Discussion

In this paper, we examined how pretrial mental health diversion under AB 1810 is being implemented in California, how racial equity considerations shaped the design and implementation of mental health diversion, and whether legal and behavioral health professionals see mental health diversion as an effective approach to addressing racial inequities in the carceral system. We found that some providers were optimistic about the potential for mental health diversion to address racial inequities in the carceral system. However, our interviews also highlighted gaps in the extent to which racial equity could be considered when implementing mental health diversion, such as the limited efforts to monitor the demographics of participants, varied perspectives on providing culturally responsive services, limited community involvement in program design, and barriers that clients faced to participating in mental health diversion.

Several counties were not actively tracking the demographics of diversion participants or their trajectory through diversion; when data were being tracked by one agency, other agencies were not always aware of the findings from those data. Without an intentional effort to track the demographics of program participants, it would be challenging for counties to detect inequities in the implementation of diversion—including the possibility that certain racial groups are more likely to be diverted than others, and the possibility that certain racial groups are more likely to successfully complete diversion and have their cases dismissed. One challenge to collecting these data is likely that there are many partner agencies involved in diversion—at minimum, public defender offices, district attorney offices, and behavioral health providers—and each group likely has “ownership” over some aspects of the data. However, efforts such as the Stepping Up Initiative have focused on ways to promote cross-agency collaboration to reduce incarceration (The Council of State Governments, 2023a), and a recent report by the Council of State Governments Justice Center highlighted ways the Stepping Up Framework can be used advance racial equity (The Council of State Governments, 2023b). These types of resources are important to ensuring that disparities aren’t being created or exacerbated by diversion.

When asked about efforts to ensure providers serving diversion clients were able to provide culturally competent services, interviewees appeared to have different understandings of cultural competence and what it means to provide culturally responsive services. Some counties described the ways that they use contract mechanisms to ensure that providers have a track record of working with racially and ethnically diverse communities and legal system-involved populations. However, other counties appeared to have less control over how providers were selected, explaining that they contracted with whichever providers were available to provide services. When it comes to specific efforts to promote cultural competency, the most common strategy was to provide cultural humility or diversity, equity, and inclusion training for contracted providers. Others described the benefits of having providers share demographic characteristics with the clients they serve. However, there are other aspects to cultural competence that should be considered. For example, in multiple counties, non-English speakers may not be able to receive services in a language other than English. Moreover, most counties said that there was no formal process for community feedback when designing their approach to mental health diversion. Involving community members and people with lived criminal legal system experience in the design of diversion programming can be an approach to providing culturally responsive services. Involvement of people with lived experience can result in programming that increases client engagement, is better tailored to the common needs or challenges faced by the population, and potentially increase the effectiveness of services (Veldmeijer et al., 2023). In this case, it is important to ensure input from people with diverse backgrounds to avoid the assumption that all challenges are the same across racial groups, as groups may face distinct barriers (Green et al., 2020).

Though we found that mental health diversion is technically available throughout the counties that we studied, there remain factors that limit participant access to program services. These factors were not necessarily directly related to race or ethnicity—rather, interviewees highlighted barriers related to insurance coverage, variability in the quality of services offered across service providers, and restrictions related to county lines impact a participant’s ability to receive services. However, past research has highlighted the fact that people from marginalized racial and ethnic groups have less access to mental health care, in part due to differences in insurance coverage and geography (Veldmeijer et al., 2023). At the same time, individuals with more limited access to insurance may be more likely to have Medi-Cal coverage, and some interviewees noted that it was easier to connect diversion clients with Medi-Cal to high-quality mental health services. But even if Medi-Cal coverage provides this type of advantage, individuals from marginalized racial and ethnic groups may face other systemic barriers when trying to access mental health services. This underscores the importance of monitoring racial differences in the access to and successful completion of diversion.

This study examined mental health diversion under AB 1810 in California. However, racial disparities in incarceration are not unique to California and study findings can help inform diversion programming nationwide. Efforts to monitor enrollment and graduation demographics can ensure equitable access to diversion programing across the U.S. All diversion programs can work to respond to the diverse needs of their participants by incorporating community input into program design, including insight for individuals with lived experience, and centered diversion programming around a shared understand of cultural competency. Additionally, understanding the systemic barriers participants may face including issues related to insurance coverage and variation in the quality of services across providers can help program administrators anticipate and work to ameliorate the challenges that diversion participants may face.

Policy recommendations

Based on the findings of this study, we identified several opportunities to increase equitable access to mental health diversion under AB1810.

Monitoring and report program outcomes

To ensure mental health diversion is accessible, counties can monitor and report program demographic, enrollment, and graduate data—for example, by committing to the Stepping Up Initiative and incorporating guidance related to using the framework to advance racial equity (The Council of State Governments, 2023b). Tracking program data could help counties identify if the population enrolled in mental health diversion is representative of the larger carceral population in their county. Because of the history of racial disparities in incarceration, examining whether the race and ethnicity of diversion program participants is representative of the county at large is essential to ensure that there is equal access to mental health diversion. In addition to tracking program data overall, counties can monitor enrollment and graduation data to help identify any disparities in access to services or program participation throughout the duration of enrollment in mental health diversion. Monitoring program data throughout different program stages can also help administrators identify any bottlenecks in diversion pipeline. Moreover, publicly releasing such data at regular intervals can help to encourage transparency and accountability.

Offering culturally appropriate services

State and county agencies can improve access to culturally competent and responsive services by working to build a shared understanding of what these terms mean across partners and invest in service providers who are experienced at providing cultural appropriate services. Building a shared understanding of what it means to provide culturally appropriate services is especially important in interdisciplinary fields like diversion and mental health services. Disciplines use different language to describe cultural competency and may have field-specific standards. For example, as a field social work has moved toward teaching cultural humility as opposed to cultural competency. While the term cultural competency emphasizes an understand of another’s experience and perspective, cultural humility also incorporates critical self-reflection on one’s own positionality and how it shapes interactions with others (National Association of Social Workers, 2015). Building a shared understanding of cultural competency across an interdisciplinary network of diversion partners including medical professionals, behavioral health providers, legal professionals, and more can help advance racial equity. Government agencies can support this work by offering training resources on cultural competency and cultural humility, and by prioritizing providers who have a proven track record of providing cultural humble services when selecting contractors. In practice, a successful track record of providing culturally responsive services may include prior experience working with justice-involved, undocumented, and non-English speaking clients.. Ideally, counties would have legal and behavioral health professionals who are fluent in other languages to ensure that non-English speaking clients have access to services in their language; when this is not possible, ensuring access to professional translation services can also fill this need. If counties or states are interested in offering training to help build culturally competency, they can incentivize participation among behavioral health and legal providers by offering continuing education units that are required of professionals in these fields to maintain their licensure.

Increasing provider capacity

One challenge related to the passage of AB 1810 is that it did not come with a funding mechanism for counties to use when implementing services. There was a grant program administered by the Department of State Hospitals that was specifically focused on individuals who met criteria to be found incompetent to stand trial or were at-risk for becoming incompetent to stand trial (California Department of State Hospitals, 2023). However, there were limitations to these funds: they could only be used for a subset of individuals who might be eligible for mental health diversion, and the majority of the first round of funding was reserved for the 15 counties with the highest number of referrals of people who are incompetent to stand trial to the Department of State Hospitals. Dedicated sources of state funding could be one way to help counties increase the available of mental health treatment, such as by enabling providers to hire more staff and thereby reduce waitlists. Additionally, investing in services can help providers expand certain types of treatment that are in high demand, like residential treatment beds. In some counties, investing in provider capacity could include funding providers to open additional locations, thereby increasing access for clients who face barriers attending in-person services due to geographic constraints. Increasing funding for providers may also allow service providers to offer additional resources like free drug testing that are currently barriers to program compliance for low-income clients with insurance that does not cover these services. State or local-level ballot measures could be used to raise funding to support increasing service provider capacity.

Addressing geographic barriers

Ensuring geographic barriers do not prevent participants from accessing services can also increase access to mental health diversion. Continuing to offer remote options for accessing services and attending appointments can help increase access. Additionally, counties can offer transportation services for appointments that need to be attended in person. Transportation services can include bus passes, contracting with shuttle service available to clients, and rides offered by case managers. Additionally, counties can offer housing resources like Permanent Supportive Housing for clients which, depending on location and whether services are offered on-site, can also reduce geographic barriers to accessing supportive services.

Increase state oversight of private insurers

This study found that Medi-Cal offers more robust coverage for mental health diversion participants. The discrepancy in quality of coverage was so significant that some providers encourage clients to forgo private coverage so they can access through public insurance. The unequal access to necessary services across insurance sectors is a health equity issue. Increase oversight by the State of California to ensure services offered by private insurance are equal to those that an individual could access if enrolled in public insurance can help improve health equity for diversion participants and Californian’s more broadly. Other states can also consider parity between public and private insurers to ensure residents have equal access to healthcare.

Areas for further research

Further research on equity and diversion can examine program enrollment data, components of diversion not explored through this study, and diversion in other states. Exploring quantitative data across the diversion pipeline including referral, enrollment, and graduation demographics can offer more detailed insight into equitable access to diversion. This study considered the overall design of mental health diversion programming but did not take an in depth look at specific program components. Additional research can examine specific components of mental health diversion in more detail including court processes, oversight, effectiveness of treatment, and client outcomes. The relationship between mental health diversion and racial equity can also be explored further in other states.

Conclusion

Mental health diversion under AB1810 holds the potential to reduce racial disparities in incarceration in California. However, to effectively reduce racial disparities and connect underserved communities to vital mental health resources, mental health diversion programs must be accessible to these communities. Creating standardized policies at the state and county level to minimize barriers to participating in mental health diversion, ensure the provision of culturally responsive services, and monitor the demographics and outcomes of program participants, can improve equitable access to mental health diversion.

Acknowledgements

Authors wish to thank the Anti-Recidivism Coalition, all participants, Nicole Eberhart, and Matthew Mizel for their support and partnership.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Additional information

Funding

This work was supported by the Robert Wood Johnson Foundation under Grant 78822.